The Transfer of Property Deed upon a Spouse's Death

By Jeffry Olson, J.D.

The Transfer of Property Deed upon a Spouse's Death

By Jeffry Olson, J.D.

It's not uncommon for one spouse in a marriage to manage the finances. This may include managing the couple's property. In those marriages, when the managing spouse dies, the surviving spouse may not be aware of what they must do to transfer property to their name. In some cases, the children of the deceased spouse may have acquired an ownership interest in the property at the time of the death of the spouse.

Elderly woman wearing glasses and reading paperwork

When a spouse who owns property dies, the first step is to find the deeds to any property in which they had an ownership interest. A deed shows how the property transferred to the deceased and how the deceased owned it. The ownership of property determines how the property transfers upon death. Further, it determines whether this transfer can take place outside the probate process.

Property with Right of Survivorship or Held in Trust

Couples commonly own property jointly with the right of survivorship. This is most common for the marital home. For such property, when one spouse dies, the property automatically transfers to the surviving spouse. This transfer takes place outside the probate process. It is also unnecessary to issue a new deed. However, sometimes a surviving spouse may choose to file evidence of death, such as an affidavit, to show transfer of the property.

When the deceased held property in trust, the deed to the property indicates the property had transferred to the trustee of the trust (generally the deceased). The transfer of that property is subject to the terms of the trust. An advantage of property held in trust is that the transfer pursuant to the terms of the trust also takes place outside the probate process.

Property Subject to a Last Will and Testament

Real property may also be subject to the terms of a last will and testament of the deceased. In those cases, the probate process must begin in a court of the appropriate jurisdiction. An executor named in the will administers the probate process.

After paying the valid debts of the estate, the executor distributes any remaining real property pursuant to the terms of the last will and testament. The will's executor may use an executor's deed to transfer the property to appropriate parties after the probate process is complete.

Property Belonging to a Decedent with No Last Will and Testament

A deceased spouse who has left no last will and testament has died intestate. When an individual dies intestate, the state's laws of intestacy determine how and to whom property transfers. The probate process must begin, allowing the court to determine how to distribute property in a given case. Intestacy laws vary by state, but a deceased's spouse generally inherits the vast majority of any real property.

When an individual dies, real property is commonly their most valuable asset. The deed for the property can determine how to transfer the property to a surviving spouse. This process may be automatic, as in the case of property owned jointly with the right of survivorship. Or the process may be more complicated, requiring the use of the courts and the probate process. Regardless, after the death of a spouse, take the necessary steps to secure ownership of any real property as soon as possible.

If you need more information on how property is transferred after your spouse dies, you'll want to first identify how the property was owned. Consider the above types of property ownership beforehand to better understand the steps you might need to take to transfer the property into your name.

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